Fraud Against Taxpayers Act A New Chapter in Whistleblower New Mexico School Boards Association 2014 School Law Conference John F. Kennedy M. Karen Kilgore T. W. Foster Cuddy & McCarthy, LLP 1701 Old Pecos Trail Santa Fe, NM 87505 505-988-4476
Two Simple Rules 1. Don t commit fraud 2. Don t retaliate
Fraud Against Taxpayers Act FATA NMSA Section 44-9-1, et seq. Effective July 1, 2007 Retroactive to July 1, 1987
9 Frauds A person shall not: (1) knowingly present, or cause to be presented, to an employee, officer or agent of the state or to a contractor, grantee or other recipient of state funds a false or fraudulent claim for payment or approval
9 Frauds A person shall not: (2) knowingly make or use, or cause to be made or used, a false, misleading or fraudulent record or statement to obtain or support the approval of or the payment on a false or fraudulent claim
9 Frauds A person shall not: (3) conspire to defraud the state by obtaining approval or payment on a false or fraudulent claim
9 Frauds A person shall not: (4) conspire to make, use or cause to be made or used, a false, misleading or fraudulent record or statement to conceal, avoid or decrease an obligation to pay or transmit money or property to the state
9 Frauds A person shall not: (5) when in possession, custody or control of property or money used or to be used by the state, knowingly deliver or cause to be delivered less property or money than the amount indicated on a certificate or receipt
9 Frauds A person shall not: (6) when authorized to make or deliver a document certifying receipt of property used or to be used by the state, knowingly make or deliver a receipt that falsely represents a material characteristic of the property
9 Frauds A person shall not: (7) knowingly buy, or receive as a pledge of an obligation or debt, public property from any person that may not lawfully sell or pledge the property
9 Frauds A person shall not: (8) knowingly make or use, or cause to be made or used, a false, misleading or fraudulent record or statement to conceal, avoid or decrease an obligation to pay or transmit money or property to the state
9 Frauds A person shall not: (9) as a beneficiary of an inadvertent submission of a false claim and having subsequently discovered the falsity of the claim, fail to disclose the false claim to the state within a reasonable time after discovery
No specific intent required Proof of specific intent to defraud is not required for a violation.
Liability for a violation of FATA A person who violates [FATA] shall be liable for: (1) three times the amount of damages sustained by the state because of the violation; (2) a civil penalty of not less than five thousand dollars ($5,000) and not more than ten thousand dollars ($10,000) for each violation; (3) the costs of a civil action brought to recover damages or penalties; and (4) reasonable attorney fees, including the fees of the attorney general or state agency counsel.
Qui Tam Plaintiff In common law, a writ of qui tam is a writ whereby a private individual who assists a prosecution can receive all or part of any penalty imposed. Its name is an abbreviation of the Latin phrase qui tam pro domino rege quam pro se ipso in hac parte sequitur, meaning [he] who sues in this matter for the king as well as for himself. Qui tam. (2014, April 19). In Wikipedia, The Free Encyclopedia. Retrieved 15:15, May 7, 2014, from http://en.wikipedia.org/w/index.php?title=qui_tam&oldid=604912937.
Private Right of Action (violation) An employer shall not discharge, demote, suspend, threaten, harass, deny promotion to or in any other manner discriminate against an employee in the terms and conditions of employment because of the lawful acts of the employee on behalf of the employee or others in disclosing information to a government or law enforcement agency or in furthering a fraud against taxpayers action, including investigating, initiating, testifying or assisting in an action filed or to be filed pursuant to the Fraud Against Taxpayers Act.
Private Right of Action (liability) An employer that violates this section shall be liable to the employee for all relief necessary to make the employee whole, including reinstatement with the same seniority status that the employee would have had but for the violation, two times the amount of back pay with interest on the back pay, compensation for any special damage sustained as a result of the violation and, if appropriate, punitive damages. In addition, an employer shall be required to pay the litigation costs and reasonable attorney fees of the employee.
Retaliation under FATA discharge, demote, suspend, threaten, harass, deny promotion to or in any other manner discriminate against an employee in the terms and conditions of employment
Two Simple Rules 1. Don t commit fraud 2. Don t retaliate
Fraud Against Taxpayers Act A New Chapter in Whistleblower New Mexico School Boards Association 2014 School Law Conference John F. Kennedy M. Karen Kilgore T. W. Foster Cuddy & McCarthy, LLP 1701 Old Pecos Trail Santa Fe, NM 87505 505-988-4476